Elements of Libel and Slander
Specific requirements that a plaintiff must prove in order to recover in a defamation action differ from jurisdiction to jurisdiction. Under the Restatement (Second) of Torts, which is drafted by the American Law Institute and has been influential among state courts, a plaintiff must prove four elements.
- First, the plaintiff must prove that the defendant made a false and defamatory statement concerning the plaintiff.
- Second, the plaintiff must prove that the defendant made an unprivileged publication to a third party.
- Third, the plaintiff must prove that the publisher acted at least negligently in publishing the communication.
- Fourth, in some cases, the plaintiff must prove special damages.
One essential element in any defamation action is that the defendant published something defamatory about the plaintiff. The Restatement defines a communication as defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him." Examples of defamatory statements are virtually limitless and may include any of the following:
- A communication that imputes a serious crime involving moral turpitude or a felony
- A communication that exposes a plaintiff to hatred
- A communication that reflects negatively on the plaintiff's character, morality, or integrity
- A communication that impairs the plaintiff's financial well-being
- A communication that suggests that the plaintiff suffers from a physical or mental defect that would cause others to refrain from associating with the plaintiff
One question with which courts have struggled is how to determine which standard should govern whether a statement is defamatory. Many statements may be viewed as defamatory by some individuals, but the same statement may not be viewed as defamatory by others. Generally, courts require a plaintiff to prove that he or she has been defamed in the eyes of the community or within a defined group within the community. Juries usually decide this question.
Courts have struggled to some degree with the treatment of statements of opinions. At common law, statements of opinion could form the basis of a defamation action similar to a statement of pure fact. Generally, if a statement implies defamatory facts as the basis of the opinion, then the statement may be actionable.
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